Pregnancy and Parental Leave Rights in California in the Time of COVID-19

Pregnancy and Parental Leave Rights in California in the Time of COVID-19

Mar

27

2020

Adobe Stock

By Sarah Schlehr

Worries about job security and remaining healthy at work are heightened for pregnant moms and new parents during the COVID-19 pandemic. While it is a public health emergency, not all employers are taking the same steps in how they alter business, leaving uncertainty for some employees.  Here we answer frequent questions about parental leave for California employees in the midst of the outbreak

Q. Can I demand to work remotely if I’m afraid of getting the new coronavirus in the workplace?

A. Under California’s Pregnancy Disability Leave law, if you work for an employer with at least 5 employees, you are entitled to reasonable accommodations for a condition related to pregnancy, childbirth, or a related medical condition. If your health care provider advises that you need to work remotely to protect your health or pregnancy and you can perform the essential functions of your job, your employer will need to grant your request. If you are unable to perform the essential functions of your job remotely, then your employer does not need to accommodate your request but will be required to either temporarily transfer you to a position that will permit you to work remotely for the time you are affected by pregnancy or provide you with a job-protected leave of absence.

Following Governor Newsom’s March 19, 2020 “Stay at Home” Executive Order, many employers are taking steps to facilitate remote work. If your employer already has put measures in place for employees to work from home, you may request the same accommodation if those measures can be applied to your job.

Q. Can I take a leave of absence during my pregnancy if I’m afraid of getting COVID-19?  

A.  During the time of COVID-19, pregnant women may be advised by their doctor to work remotely or, if this is not possible, to take a leave of absence. If your doctor recommends that you take a leave of absence because you are disabled by pregnancy, childbirth, or a related medical condition, you are entitled to up to four months of job-protected leave.  If your pregnancy-related disability extends longer than four months, you may be entitled to more than four months of leave as a reasonable accommodation.  

Q. My doctor placed me on a leave of absence because my employer would not allow me to work remotely. My employer has now moved everyone to remote work. Can I begin working again?

A. Yes. If your employer decides to implement remote work protocols, your employer must reinstate you as soon as reasonable accommodations are available that will permit you to perform the essential functions of your job.

Q. If I require a leave of absence for my pregnancy, does my employer have to pay me?

A. Under ordinary circumstances, if you are taking leave because you are disabled because of pregnancy or to bond with your new baby, your employer does not need to pay you while you are on leave. However, you can use any sick and vacation leave you have accrued. Additionally, you may be eligible for State Disability Insurance (SDI) and Paid Family Leave (PFL) during this time, which would provide you with 60 or 70% of your normal weekly wages.  If you are taking leave under the Pregnancy Disability Leave Law, the New Parent Leave Act, or the California Family Right Act, then your employer must also maintain your health benefits.

If you work for an employer with 500 or fewer employees and your health care provider advises you to self-quarantine during your pregnancy due to concerns about COVID-19 or you are experiencing symptoms of COVID-19 and are seeking a medical diagnosis, then your employer may be required to pay you for 10 days for emergency sick leave under The Families First Coronavirus Response Act.

Q. Can I be laid off while I’m taking disability or parental leave?

A. Your employer cannot include you in a layoff if the reason for the layoff is that you are pregnant or taking a job-protected leave. However, your employer can include you in a layoff or reduction in force if you would have been laid off even if you weren’t pregnant or taking leave.

Q. What benefits can I receive if I’m on leave or laid off?

A. A variety of benefits may provide partial wage reimbursement if you are laid off during your pregnancy or taking a job-protected leave of absence. You can apply for these benefits through California’s Employment Development Department (EDD). Such partial wage replacement benefits may include:

Short term disability—during the time you are disabled because of pregnancy, childbirth, or a related medical condition, you may be entitled to short term disability benefits.

Paid family leave—if/when you are no longer disabled, you may be eligible for up to 6 weeks of Paid Family Leave benefits while you bond with your new baby (8 weeks starting July 1, 2020).  

Unemployment Insurance—when you are available to work but do not have a job to return to, you may be eligible for unemployment benefits.

Q. My child’s school/daycare closed due to COVID-19. Can I work from home?

A. There is no law that requires employers to permit employees to work from home because a child’s school or daycare has closed. However, the California Labor Code and the The Families First Coronavirus Response Act require your employer to provide you with time off of work.

California’s Family School Partnership Act requires employers with at least 25 employees to provide you with up to 40 hours of leave for a school or childcare related emergency. A school related emergency includes the closure or unexpected unavailability of your child’s school or childcare provider. Unfortunately, this provision does not apply if your child’s school or daycare remains open even if you would prefer to keep them home due to concerns of the new coronavirus.

The Families First Coronavirus Response Act requires employers with 500 or fewer employees to provide employees with 2 weeks of emergency paid sick leave and 12 weeks of emergency family leave when workers need to care for their child under 18 years old if the child’s school or place of care has been closed or when their childcare provider is unavailable.  For the 12 weeks of emergency family leave, you must have worked for your employer for at least 30 days. 

Q. What is a good approach for discussing my rights with my employer?

A. Be professional and patient without risking your health or the health of your pregnancy or child. It is important to ask your employer questions in a professional manner. If your employer doesn’t have immediate answers, give them the opportunity to obtain accurate information. But never risk your own health or the health of your pregnancy or child. If your doctor or other health care provider advises that you require accommodations or a leave of absence immediately, let your employer know in writing and follow your health care provider’s advice. If your employer requests a doctor’s note, provide one to them as soon as it’s feasible.

Benefits and protections available to employees impacted by COVID-19 are evolving and you are encouraged to check with the websites of the Labor and Workforce Development Agency and the Employment Development Department of California websites for the most updated information regarding your rights as an employee in California and the benefits that may be available to you. Also, visit Legal Aid at Work’s Roadmap and Guide to see how your right to leave and wage replacement work together. You may also contact Sarah Schlehr at sarah@pregnancylawyer.com if you have questions about your rights.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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CELA VOICE

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Valuing fatherhood in the workplace

Valuing fatherhood in the workplace

Jun

21

2015

Nurse

By Sarah Schlehr and Mariko Yoshihara

This Father’s Day, let’s do more than just celebrate our dads with Hallmark cards and backyard barbecues.  Instead, let’s give our dads something they really need – flexible workplace policies.

It can’t be surprising that the increase of women in the workforce, coupled with laws that discourage fathers from taking leave, has created a cascade of domestic stresses.  While women still bear a disproportionate share of the domestic work despite also working outside the home, working fathers now report feeling more work-family conflict than working mothers do.  The irony of this conflict is that fathers are actually prevented from sharing some of the burdens (and joys) of family life because they are saddled by Leave It To Beaver-era parental leave laws.

The good news is, change appears to be on the horizon.  This April, Massachusetts became the first state to require all but the smallest employers to provide fathers with unpaid job-protected leave for the birth of a child.  The law, renamed from the Maternity Leave Act to the Parental Leave Act,  requires businesses with at least six employees to cover dads as well as moms.  The expanded coverage is a much-needed first step in recognizing the universal need for fathers to spend time and bond with their newborn children.

A 2007 study found that fathers who took two or more weeks of leave after a child was born were more likely to perform certain daily child care tasks, like diapering, feeding, and bathing later on.  Fathers who took less than two weeks of leave were no more involved than those who took no leave at all.

Despite the clear benefit of taking time off to bond with a new child, fewer and fewer businesses are offering leave benefits to fathers and research has shown that those who do take leave face a significant stigma in the workplace (let’s not forget the New York Mets baseball player, Daniel Murphy, who was criticized when he took three days off for the birth of his child).

According to a recent study, most fathers only take between one and two weeks off after the birth of a child and the length of time off was closely tied to how much of the leave was paid.  Luckily, California is one of the few states that offer paid leave to parents.  And it’s no surprise that since the program was implemented, the percentage of “bonding leaves” claimed by men has gone up from 18.7 percent in 2005 and 2006 to 31.3 percent in 2012 and 2013.

Unfortunately, many fathers, especially low-income fathers, cannot take advantage of paid leave because their employers are too small to be covered by a law that would provide the new dads with job protection.  Most fathers simply cannot risk losing their job, especially after the birth of a new child.  Leaving aside the lucky Massachusetts dads, the only fathers who can access job-protected leave are those who are covered by the Federal Family and Medical Leave Act (FMLA) or a state law corollary.  But these laws leave a lot of fathers out in the cold since they only cover employees who work for companies with 50 or more employees and who have worked there for at least a year.

Incremental change may be on the way in California, where advocates for working dads (and moms) are pushing to increase the boundaries of who is covered by the California Family Rights Act, California’s corollary to the FMLA.  California’s SB 406, the legislation that would amend the law, does not go as far as the Massachusetts parental leave law.  But it does propose to expand leave rights to workers at smaller businesses, by lowering the employee threshold from 50 or more employees to 25 or more.

While SB 406 and the Massachusetts law are certainly steps in the right direction, both still lag far behind what other countries provide for their fathers.  For years, Sweden has had a generous parental leave policy of 16 months that could be shared by the mother and father.  Beginning in 1995, Sweden introduced a “use it or lose it” policy that reserved one month specifically for dads.  This was increased to two months in 2002 and will increase again to 3 months in 2016.  Some countries, like Chile, Portugal, and Italy, go so far as to make paternity leave compulsory, to help ensure that fathers share childcare responsibility with mothers.

It’s time for California and the rest of the United States to catch up and show that the job of parent is at least as important as the jobs parents perform for their employers.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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Mariko Yoshihara, Director · Sarah Schlehr

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Honor working moms this Mother’s Day by signing a card to protect their jobs

Honor working moms this Mother’s Day by signing a card to protect their jobs

May

9

2014

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By Sarah Schlehr

This year marks the 100th official anniversary of Mother’s Day.  Let’s make it memorable by asking Congress to support the Pregnant Workers Fairness Act.  The National Women’s Law Center is asking everyone to sign the biggest Mother’s Day card ever.  By signing this card, you will be asking Congress to protect pregnant women and allow them to keep their jobs when they need modest accommodations during their pregnancy.

Although California has some of the strongest workplace protections for pregnant women, many states today do nothing to protect moms-to-be in their jobs.  Pregnant women have been fired because they asked to avoid heavy lifting, stay off ladders, or sit on a stool instead of standing at a cash register all day.  And the companies that fired them, did so legally!  This needs to change.

Women make up almost half of today’s workforce and over forty percent of moms are the sole or primary breadwinners for their families.  Sixty-five percent of married mothers with children work.  The Pregnant Worker’s Fairness Act would help moms-to-be stay in their jobs and continue providing the financial support that their families need.

Not only are mothers’ incomes often essential to providing for the needs of their babies, but studies have shown that working mothers have children with higher scores in language, reading, and math across gender, socioeconomic, and marital status.  The daughters of working mothers showed more positive assertiveness, increased willingness to challenge traditional gender roles, and increased competence.  Dual income couples also report the highest marital quality.  And while there is nothing wrong with being a stay-at-home mom, we need to protect the employment of mothers who work.

The Americans with Disabilities Act (“ADA”) already protects disabled workers from being fired when they need reasonable accommodations at work.  There is no reason that pregnant workers shouldn’t receive the same protection.  For example, the ADA would protect a worker who experienced a hernia and needed to avoid heavy lifting, but if that same worker became pregnant, the employer could legally fire her for asking for the exact same accommodation.

The Pregnant Worker’s Fairness Act would change this by ensuring that employers make reasonable accommodations when workers have a medical need because of pregnancy, childbirth, or related medical conditions.  Because new moms should never have to choose between the health of their baby and their job.

This Mother’s Day, tell Congress to do more than pay lip service to our hard working moms.  It’s time we pass the the Pregnant Worker’s Fairness Act and show our moms that they are valued both at home and in the workforce.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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Sarah Schlehr

Heralding USERRA — the unknown law that protects jobs at home while military members serve

Heralding USERRA -- the unknown law that protects jobs at home while military members serve

Nov

15

2013

military-man-station-6081107By Sarah Schlehr

I am proud to say that my younger brother is a Veteran of the Marine Reserves.  He served two tours of active duty—both in Iraq.  Being a Marine is part of his identity and something he will wear as a badge of honor through his life.

My brother signed up for the Marine Reserves shortly after 9/11.  While I personally did not support our invasion of Iraq, I always supported our troops and personally witnessed the commitment and passion of my then 19 year old brother in wanting to protect our country’s freedoms.

At the time of his first call to duty, my brother was just 22.  He worked a full-time job at a grocery store in the Midwest.  Although I make my living representing employees in legal disputes with employers, his was my first experience with the ways employers, whether knowingly or through ignorance, violate the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Though his job paid just over the minimum wage, my brother was on management track and entitled to health benefits.  That is, he was until he notified his employer that he had been called to active duty for service in Iraq.

Shortly before my brother left for Iraq, his manager called him into his office and had him sign a paper stating that he was being reduced to part-time hours, but that he would be eligible to return to full-time status if and when he returned.  Unhappy with this demand, but also preoccupied with his impending departure to active military service and unfamiliar with his rights under USERRA, my brother signed the paper and left.

After sharing his frustration with others more knowledgeable about the law, he went back to the store, and asked to see the paper that he had signed.  He then tore it in half.  His stunned manager asked him if he was walking out of the job.  My brother responded “No, I’ll be back in about a year,” and left for Iraq.

It is shameful that so many military service members are uninformed about their rights under USERRA, the federal law designed to protect their civilian jobs, and to ensure their re-employment after deployment.  Ignorance of the law appears to be rampant. And despite efforts by both the Department of Labor and the Department of Defense to educate employers on their obligations under USERRA, complaints by service members are on the rise.

USERRA requires employers to provide service members time off to serve in the military and to restore them to their jobs promptly when they return from duty.   Importantly, it also requires the employer to continue medical coverage for service members and their dependents through any employer-based health plan for up to 24 months and prohibits discrimination and retaliation against service members.  In my brother’s case, the employer’s attempt to move him to a part-time position could have impacted his entitlement to coverage during his tour of duty.

It is impossible to determine the actual number of USERRA violations because there is no central collection point for reporting claims. And some service members, like my brother, may never formally complain.  However, we do know that complaints filed with the Employer Support of the Guard and Reserve (ESGR), an agency within the Department of Defense, and through the Veterans in Employment and Training Service (VETS), an office within the Department of Labor rose between 2010 and 2011, the most recent years for which numbers are currently available.

The Defense Department’s ESGR attempts to informally resolve service members’ complaints through the use of volunteer ombudsman.  During FY 2011, the most recent year for which numbers are available, the ESGR mediated 2,884 USERRA cases.  Over 1500 of them involved problems with job reinstatement and reemployment. Although instructive, these numbers don’t tell the whole story since there is no requirement that employees complain to the ESGR nor are they required to participate in mediation.  At the same time, the Department of Labor VETS program reviewed 1,548 new unique USERRA complaint cases, up 8% from the previous year.

These numbers do not tell the whole story.   Many service members are unaware of their rights under USERRA.  Even those who know about USERRA may be reluctant to pursue legal recourse.  Those who do pursue their rights may utilize legal avenues outside of the ESGR and VETS.

Fortunately, my brother came home from Iraq safely and was able to return to his job.  When he returned, he went back to the same store and manager and experienced no serious repercussions or retaliation.  He still isn’t sure if his former employer was intentionally violating the law or just ignorant of its protections.

But not everyone is so lucky.  Much more needs to be done to educate both employers and service members of their employment rights, to track violations, to punish violators, and to provide redress.  Surely, that’s the least we can do to repay the sacrifices made by  the men and women protecting our country.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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Sarah Schlehr

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Devastating consequences to working moms and infants when employers violate the law

Devastating consequences to working moms and infants when employers violate the law

Aug

21

2013

By Sarah Schlehr

California law has the back of new and expectant mothers who need workplace accommodations during pregnancy or time and space to breastfeed after giving birth.  By following the laws, employers protect the moms-to-be and babies. Unfortunately, when employers disregard their legal obligations, the consequences for women and their babies can be huge – premature delivery, back injuries, undernourished babies, even stress-related miscarriage.

A recent article in the Huffington Post exemplifies the suffering one employee experienced when Albertson’s failed to accommodate her most basic requests for accommodations: she delivered prematurely and her newborn died.  In a recent blog post detailing this tragic case, the public interest law firm, Public Justice, calls for action at the federal level to extend the types of protections available under California law across the nation.  Blogger and Public Justice staff attorney Claire Prestel touts the recommendations of an important recent report by the National Women’s Law Center and A Better Balance —

So here’s a newsflash that shouldn’t be news to anyone: More and more pregnant women are working, working closer to their due dates, and providing essential income and benefits for their families. This means that if we are going to get serious about restoring the middle class, part of our effort must go to protecting these women so they can support their families. The NWLC/ABB report outlines concrete steps that can and should be taken right now, including guidance the EEOC can issue without presidential or congressional action.

Another recent blog post from Public Justice senior attorney Victoria Ni, The Facts of Life, describes the long struggle women have experienced to secure their right to breastfeed their babies while supporting their families by working.  In California, the law was amended this year to ensure that discrimination based on sex specifically included breastfeeding.  Despite this, many women continue to experience difficulties trying to pump breast milk during work hours.  Unfortunately, even a day or two of interrupted pumping can have significant and ongoing effects on a mother’s ability to breastfeed their newborn.  While certainly not as extreme as the death of a newborn, the inability to supply one’s child with breast milk can have serious long-term effects on the health of one’s baby.

Often the accommodations female employees need are as simple and obvious as not requiring a pregnant woman to lift heavy items or to allow a woman with gestational diabetes the ability to eat regular snacks during work so her blood sugar can remain stable.  For women who wish to breastfeed, the accommodation is usually as straightforward as providing them with a private space (not a bathroom stall) and time to pump breast milk.

In view of how long and hard employees had to fight to establish these reasonable and simple laws, it should perhaps not come as a surprise that employers continue to fight long and hard to resist following them.  But resistance to change does not justify the serious consequences to women and the long-term harms suffered by infants, all of which can be prevented in California through enforcement of the legal protections.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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Sarah Schlehr

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